In Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform, Fordham University law professor John Pfaff takes aim at the conventional wisdom that the war on drugs and race-based prosecution of it are the primary factors causing the U.S. prison populations to continually rise.
Pfaff’s Twitter bio states (in part), “I’m not contrarian—the data is,” which is a pretty apt summation of his focus on the “bottom up” causes of mass incarceration that seem to contradict what he calls “The Standard Story”—that mass incarceration is the result of top-down federal policies.
“The Standard Story” has been made most prominent by Michelle Alexander’s book The New Jim Crow: Mass Incarceration in the Age of Colorblindness and the Oscar-nominated documentary 13th, and while Pfaff says he respects the efforts that went into these works, he counters such “deployment of rhetoric” by digging into the harder to rectify data which shows that mass incarceration is driven far more by local prosecutors than federal drug war policies, and it’s not even close.
Reason spoke with Pfaff in a coffee shop near Fordham Law’s Manhattan campus about why he never lets his students use the phrase “criminal justice system,” why he never uses the phrase “violent offender,” and why he’s still optimistic about criminal justice reform in the era of President Donald Trump.
Reason: What are people who have gravitated toward Michelle Alexander’s argument that mass incarceration is a direct consequence of the federal drug war missing?
Pfaff: I’m sympathetic to the argument but I think it still downplays the way which that rhetoric resonated in part because of violence. To frame it as the war on drugs suggests a very top down approach—framing this as a war on drugs. We could change our framing, redeploy our police officers, and we can shift things. I think the lessons of the war on drugs and punitive [sentencing] in general was more bottom up. The example I always point to is New York state. We passed and ratified drug laws in 1973. That was when New York state sort of declared its war on drugs. And the number of people in the New York state prison goes up slightly in the years after ’73 and then it goes down. In 1984 there were actually fewer people in New York state prison for drugs than ’73, so you have this huge rhetorical war on drugs being declared and local prosecutors just don’t do anything with it. Then in the mid-1980s, there’s this giant explosion of violence, and you see this huge rise in drug-related incarcerations which suggests to me that there is a substantial contextual component to this. Then, drug admissions start to decline in New York state in 1998, well before the real reforms in 2008.
Reason: And people were just catching up to the fact that crime was dropping, even in the public consciousness, in the late 1990s.
Pfaff: Exactly. I always like to point out the fact that there were actually more total people victimized by violent crime in 1990 than in the 1980s. I don’t ever allow my students to use the phrase criminal justice system and I push back when people say the system does what it is designed to do because there isn’t a system there. It’s many systems. Police at the city level, the prosecutors at the county level, the parole boards at the state level.
Whether [Alexander] meant it as sort of a broader rhetorical push or not, it’s been interpreted by people who’ve read it to mean that people in prison for drugs are driving our prison population. So I keep coming back repeatedly to this survey that Vox did. The question was do you think the majority of people are in prison for drugs? Sixty percent of all respondents across all three groups [liberal, moderate, conservative] said yes. Reformers like Alexander are saying it’s the war on drugs that does it. It’s also our focus on the feds, which really represent just a small fraction of overall incarcerations.
The second question on the survey that is more scary, they asked would you be willing to cut time served of someone convicted of violence who poses little to no risk of violence in the future? Over 55% liberals and 65% conservatives said no.
Reason: It seems like there are almost no politicians sticking their necks out on a “less prison time for violent criminals” platform.
Pfaff: It’s very hard to do that. The politicians are very skeptical but I’m not unsympathetic to them. Americans consistently say that they want more rehabilitation and less punishment, but then we consistently vote based on that one shocking [violent] case. It would be great if politicians consistently prioritized doing the right thing over keeping their job.
Reason: Your main counterargument to “The Standard Story” is basically, prosecutors have been using their discretion to charge people as harshly as possible, which mostly leads to plea bargaining, which leads to more people serving time in prison. I’d bet that most Americans don’t know that the U.S. is unique among Western democracies in that we elect our prosecutors. Why is that an American trait?
Pfaff: It comes from the same instinct as elected judges. The act of appointment was viewed as corrupt; you could appoint your friends and your cronies and you wouldn’t enforce anything. The idea was to let the people themselves have a say, but I think what we see of course is that corruption will move to wherever the choice is being made. So when you shift from appointment to elections, then the money moves into elections and corruption shifts to there, so there are still concerns with elections but the underlying logic of an elected prosecutor was never actually less problematic.
The real challenging thing to the United States is that, as it stands now, the wrong people are often doing the choosing. The people who least suffer the costs of prosecutor choices have the most say. Prosecutors are elected by counties—and at least in most urban counties—the county contains a city and then a ring of suburbs. Usually those suburbs are wealthier, whiter, and tend to have more political power, so they feel the benefit of the county being safer, but they don’t feel the cost of over-enforcement. The people who feel the cost of excessively aggressive prosecution tend to have the meekest political voice. The one solution could be to preserve elections [of prosecutors], but to devolve the election to a much more local area. Let Chicago elect the DA and then let Cook County elect a separate DA.
Reason: In Locked In, you argue that the way we look at violent criminals needs to change. How do you sell that idea?
Pfaff: Violent felons might not be inherently dangerous, if the act of violence was in the context of very specific relationship, or even the fact that what we define as violent isn’t always violent. Things we classify as vicious violent might not actually cause any physical harm.
Reason: Like what?
Pfaff: In New York state if you break into a house—even if it’s unoccupied, even if you are unarmed—that constitutes a violent crime, because the potential for harm is there. Or if I say, “Give me your wallet or I’m going to punch you,” and you give me your wallet. That’s robbery. Someone gave me an example of a kid who threw food at his classmate and it hit the teacher. The school resource officer (SRO) arrested him for a violent crime, because some sort of harm is assault, right? And so now you have a violent felony record. A lot of things either no one was harmed or the harm was so minimal that it’s not what we think of as classical violence.
Reason: You seem pretty optimistic that reform can still survive under Trump, but when Democrats are challenged on these kinds of issues they tend to push towards law and order as a means of clawing their way back into the majority.
Pfaff: It’s complicated. A large number of Americans voted for Trump, but it was an electoral college win and not a popular vote win, which I think gives the Democrats a certain amount of breathing room.
Even in a state like Oklahoma, which went 60-65 percent for Trump—one of the largest margins of victory for Trump in any state—at the same time they passed two criminal justice reform referendums. It means a sizable number of Trump voters voted for these referenda, shifting drug cases from felony to misdemeanor, and they’re reallocating the money being saved to treatment programs. They weren’t rescaling violent crimes but they were focusing on really tackling drug offense at the state level. Several years ago Mississippi—actually the only state I’ve seen really do this—they cut the punishments for violent crimes. They had a truth in sentencing law that required you to serve 75 percent of your time in prison before you got parole, and they cut it back to 50. So even tough on crime places are showing more local smartness.
Reason: What else does “The Standard Story” miss?
Pfaff: By focusing on drugs, we’re delaying this conversation on violence. I agree we have to start with drugs. You can’t go from forty years of rising prison populations and then the very next day say, alright, we need to start shifting the conversation. The way we pass these reforms for low-level non-violent and drug cases, it’s often by jacking up sanctions from violent crimes as sort of a compromise. The argument being, “We’re not soft on crime, we’re smart. These reformers think smart means being less tough on the non-violent so that we can be tougher on the violent offenders, people being convicted of violence.
That needs to shift because the proper response to violence is not always prison. It’s riskier to focus on enforcement rather than prison. Prison takes them out of sight, out of mind. The huge collateral costs that we never pay attention to traverse drug overdoses, the destabilization of families, the risk of HIV and tuberculosis, the lost income, increase welfare dependency. There are huge costs in prison that we tend to ignore and because our immediate knee-jerk reaction is well they’re violent they must be in prison, it ignores this cost and it ignores the fact that people age out of crime.
In my book, I never used the words “violent offender,” because violent offender defines who the person is, as opposed as to the state they are passing through. At some point we need to start having a conversation about people convicted of violence, because we can’t keep passing reform laws that ratchet things up for violence as a compromise for non-violence. I think we need to focus much more on the complicated politics of this.
By focusing on private prisons, we ignore the incredibly complicated and very intractable public sector politics of punishment. Almost no one talks about the routine nature of guard unions. California’s prison guard union gets attention because they are so aggressively in front of pushing these topical bills. New York state’s guard union gets a lot less attention even though the state shed 25 percent of its prison population, but its correctional budget has been steadily rising. I don’t think people realize that nationwide, something like 45 percent of all correctional spending is just wages, and in some states it’s as high as 65 percent. That’s a huge incentive to fight against decarceration.
Reason: It’s a jobs program.
Pfaff: People complain about how private prisons have this contract that mandates payment even when the prison’s empty. They still get a mininum payment based on a certain capacity. But New York state keeps certain [public] prisons open with very few prisoners but lots of guards, which is exactly the same defect but at a much larger level because there’s just so many more public prisons than private.
Pennsylvania once closed two [public] prisons and laid off three guards. They’re very good at avoiding these things and as long as we are focusing on private prisons, we’re ignoring the real financial power driving this process. What we target, if we want to get reformative, is how to change the incentives of upstate legislators who depend upon prisons to retain their seats.
Reason: So our nationwide mass incarceration problem requires local attention, local solutions?
Pfaff: That’s kind of my hope with D.C.—from a routine criminal justice point of view—they are not going to focus on the things that really matter, and that gives reformers some breathing room. Whatever sort of Trump obsessions are over there, the real work is taking place over here. There’s not going to be some bill that’s going to come out of the U.S. Senate or even out of the New York state legislature that’s going to say alright we solved the problem.
You’ve got to go county by county, DA by DA. That is harder work, but also lower profile, so there’s much less resistance than the state or even the federal level. That’s kind of where my Trumpian optimism comes from. That they aren’t debating what really matters, what matters is that what goes on in some dingy county office building.
You’re not going to have that one big fix.
This interview has been edited for style, clarity, and length.
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